We have talked with many landowners recently about the Highway 23 project and a federal court decision, which came out in late May: 1000 Friends of Wis., Inc. v. United States DOT, 2015 U.S. Dist. LEXIS 67176 (E.D. Wis. May 22, 2015). Link.
This case involved a 19-mile stretch of State Trunk Highway 23 between Fond du Lac and Plymouth, Wisconsin. For years, lawmakers and the DOT discussed expanding that part of the highway from the original two lanes. But it was not until 2010 that the project moved forward and DOT issued an environmental impact statement (“EIS”) and recommendation to expand that stretch of Highway 23 to four lanes. The Federal Highway Administration (“FHWA”) approved DOT’s recommendations with a record of decision in September 2010 and another for a supplemental EIS in March 2014. DOT based its recommendations to expand, it said, on its estimates of future population growth in the area. It was DOT’s failure to explain these calculations and failure to consider the value of updated population data, which the court criticized.
When a major road project involves federal funding and FHWA, the National Environmental Policy Act of 1969 (“NEPA”) requires the agency involved to prepare an EIS. The EIS lays out how and why the agency settled on a particular course of action. The agency’s explanation must be sufficiently clear so that the public could understand and consider meaningfully the factors involved.
Plaintiffs raised a few issues but this decision turned on a couple: (1) to what extent DOT and FHWA explained how DOT applied its traffic projection methods and (2) whether DOT had adequately considered new, much lower, population growth estimates.
To estimate future population growth, DOT used two models – TDM and TAFIS. The EIS described, in general terms, how the models worked. However, the court noted, DOT failed to explain how these models produced the future population growth projections they did for the Highway 23 area. The court concluded that by failing to showing their work, DOT prevented the public from being able to understand how the agency arrived at their recommendation to double the highway’s size.
Additionally, the court faulted DOT for failing to consider whether updated, much lower population projections would affect its decision to expand. Shortly before the DOT released its final Environmental Impact Statement, the Wisconsin Department of Administration released new population projections reflecting a lower growth rate – possibly as low as 1/3 of the earlier projected population increase.
Though NEPA does not require agencies to include every bit of new information, NEPA does require agencies to at least determine whether the new information might be significant to the project – even after initial approval of the EIS. Izaak Walton League of America v. Marsh, 655 F.2d 346, 373, 210 U.S. App D.C. 233 (D.C. Cir. 1981).
Here, the EIS mentioned these updated figures in the background but DOT did not discuss how the updated figures affected traffic projections and what that meant for alternative recommendations. Nor were there other documents showing that DOT made an explicit, reasoned determination in not including the new DOA numbers.
Because of these two faults – failing to show how DOT applied the TAFIS and TDM models to Highway 23 and failing to decide, explicitly, whether to address new population numbers – the district court concluded that the EIS had not met NEPA’s requirements. Without a satisfactory EIS, the court vacated NHWA’s record of decision approving the Highway 23’s expansion. The case was then set for further proceedings.